Contract
EXHIBIT 10.2
THIS
SECURED PROMISSORY NOTE IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION
AGREEMENT, DATED AS OF MAY ___, 2008, AMONG NPIL PHARMA INC., RXELITE, INC.
AND
CASTLERIGG MASTER INVESTMENTS LTD.
SECURED
PROMISSORY NOTE
| $3,000,000.00 |
__________,
2008
|
FOR
VALUE
RECEIVED, RXELITE,
INC. a
Delaware corporation ("Maker"),
promises to pay to the order of NPIL
PHARMA INC.
("Payee"),
the
sum of Three Million and No/100 Dollars ($3,000,000.00) together with interest
thereon at the rate set forth in that certain Loan and Security Agreement of
even date herewith by and between Maker and Payee (the "Loan
Agreement").
This
Note shall be due and payable in accordance with the terms of the Loan
Agreement. Upon the earlier of (a) Demand by the Payee, or (b) the Loan
Termination Date, all principal, interest and expenses then outstanding shall
be
finally due and payable.
Any
payment not made within ten (10) days following its due date shall be subject
to
assessment of a late charge equal to the Default Rate (as defined in the Loan
Agreement). All amounts due under this Note are payable at par in lawful money
of
the
United States of America, at the principal place of business of Payee in Edison,
New Jersey, or at such other address as the Payee or other holder hereof (herein
"Holder")
may
direct.
The
occurrence of an Event of Default under the Loan Agreement shall constitute
an
Event of Default under this Note. Subject to the terms and provisions of the
Subordination Agreement (as defined in the Loan Agreement) the occurrence and
during the continuation of an Event of Default, Holder may, at its option and
without notice, declare all principal and interest provided for under this
Note,
and any other obligations of Maker to Holder, to be presently due and payable,
and Holder may enforce any remedies available to Holder under any documents
securing or evidencing debts of Maker to Holder. Holder may waive any default
or
Event of Default before or after it occurs and may restore this Note in full
effect without impairing the right to declare it due for a subsequent default,
this right being a continuing one. Upon the occurrence and during the
continuation of an Event of Default, the remaining unpaid principal balance
of
the indebtedness evidenced hereby and all expenses due Holder shall bear
interest at the Default Rate (as defined in the Loan Agreement).
All
amounts received for payment of this Note shall be first applied to any expenses
due Holder under this Note or under any other documents evidencing or securing
obligations of Maker to Holder, then to accrued interest, and finally to the
reduction of principal. Subject to the terms and provisions of the Subordination
Agreement, prepayment of principal or accrued interest may be made, in whole
or
in part, at any time without penalty. Any prepayment(s) shall reduce the final
payment(s) and shall not reduce or defer installments next due.
This
Note
may be freely transferred by Holder, upon three days prior written notice to
Maker.
Maker
and
all sureties, guarantors, endorsers and other parties to this instrument hereby
consent to any and all renewals, waivers, modifications, or extensions of time
(of any duration) that may be granted by Holder with respect to this Note and
severally waive demand, presentment, protest, notice of dishonor, and all other
notices that might otherwise be required by law. All parties hereto waive the
defense of impairment of collateral and all other defenses of
suretyship.
Maker’s
performance under this Note is secured by various property, including, but
not
limited to, the personal property described in the Loan Agreement.
Maker
and
all sureties, guarantors, endorsers and other parties hereto agree to pay
reasonable attorneys’ fees and all court and other costs that Holder may incur
in the course of efforts to collect the debt evidenced hereby or to protect
Holder’s interest in any collateral securing the same.
The
validity and construction of this Note shall be determined according to the
laws
of Delaware applicable to contracts executed and performed within that state.
If
any provision of this Note should for any reason be invalid or unenforceable,
the remaining provisions hereof shall remain in full effect.
Maker
and Lender hereby knowingly and voluntarily waive any right to a trial by jury
with regard to any action, proceedings, claims or counterclaims, whether in
contract or in tort, at law or in equity, of any type or nature whatsoever
arising under or concerning this note or the credit relationship evidenced
thereby.
MAKER
REPRESENTS AND WARRANTS THAT THE PROCEEDS OF THIS NOTE ARE FOR BUSINESS AND
COMMERCIAL PURPOSES AND NOT PRIMARILY FOR FAMILY, CONSUMER, HOUSEHOLD OR SIMILAR
PURPOSES.
Words
used herein indicating gender or number shall be read as context may
require.
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|
RXELITE,
INC., Maker
By:_____________________________________
Title:____________________________________
Taxpayer
I.D. No.:
|
[Signature
page to Note]
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